Filibusters are a necessary evil, which must be tolerated lest the Senate lose its special strength and become a mere appendage of the House of Representatives.[1]

Senator Robert C. Byrd

The House of Lords is not the watchdog of the constitution; it is Mr. Balfour’s poodle.[2]

David Lloyd George

The most troubling countermajoritarian difficulty in modern constitutional law is Rule Twenty-Two of the United States Senate.[3] Forty-one Senators, who may represent less than forty-one percent of the population due to the malapportionment of the Senate, can veto most legislation and presidential nominations by refusing to invoke “cloture” and thereby allow debate on those matters to end.[4] Though the filibuster is woven into our political folklore and critical to the legislative process, few legal scholars have examined the practice.[5] That is surprising because the presumption that a supermajority is required for action in the Senate is a recent development that casts a shadow over democratic self-government.[6]

This Article evaluates the tradition of unlimited debate in the Senate and argues for a change in Rule Twenty-Two that would turn the cloture vote into a suspensory rather than an absolute veto.[7] Put another way, forty-one Senators should only be able to extend debate on legislation or nominations that reach the floor for a year within a given Congress. This proposal, which is patterned on the power of the British House of Lords to block most bills passed by the House of Commons from becoming law for up to a year, would strike a better balance between a majority’s right to govern and a minority’s right to be heard.[8] A suspensory veto would also bring the Senate back to its traditional practice, which allowed a determined majority to get its way except at the end of a Congress when claims of undue haste were more legitimate.[9]

The primary reason why cloture should be reformed is that unlimited Senate debate is now just a legal fiction.[10] Under the “two-track” legislative calendar instituted in the 1970s, a refusal to vote for cloture does not lead to extended debate–it leads to no debate.[11] The Senate Majority Leader almost always removes the disputed bill from the floor (or does not bring it forward in the first place) and moves on to other business.[12] Since it is impractical to end the two-track system because of the Senate’s aversion to the unpredictable and unpleasant schedule that would be created by round-the-clock speeches, there is no deliberative basis for the current cloture rule.[13] On the other hand, solicitude for minority rights and a desire to stop statutes from being rushed through the Senate without appropriate scrutiny suggest that getting rid of cloture entirely would be wrong. Ironically, the House of Lords, which is the least studied or respected legislative body in any major democracy, offers the best procedural solution.[14]

Convincing people that the filibuster should be turned into a suspensory veto is one thing; convincing the Senate to adopt this idea is something else. Public pressure did force the adoption of the initial cloture rule in 1917, but that may not be enough this time.[15] In some cases the Senate responds only to institutional pressure. For instance, when reformers sought to end the power of one-third of the Senate to control Native American policy by rejecting tribal treaties, the House of Representatives refused to appropriate funds for those treaties and forced the Senate to back down and agree that the Tribes should be regulated by ordinary legislation.[16] When progressives failed to get the Senate to take up the Seventeenth Amendment, which changed how its members were chosen, nearly two-thirds of state legislatures petitioned for a constitutional convention and the Senate gave way.[17] And when internationalists in the 1940s wanted to make sure that a Senate minority could not repeat the mistake of rejecting the League of Nations, the House passed a constitutional amendment abolishing the traditional treaty ratification process and the Senate accepted the idea that a congressional-executive agreement passed by a majority of each House of Congress could be the legal equivalent of a treaty.[18] Getting cloture reform may require this kind of robust action again.

Part I traces the development of the filibuster and argues that the current version is inconsistent with the majoritarian tradition of the Senate and serves no legitimate purpose. Part II makes the case for a suspensory veto by examining how concerns about the lack of democracy within Parliament led to the creation of a similar rule for the House of Lords. Part III explores past episodes where the Senate was strong-armed into giving up its prerogatives and provides some suggestions on how that could be done for cloture.

[2] Roy Jenkins, Mr. Balfour’s Poodle: Peers v. People 10 (1954) (attacking the absolute veto held by the House of Lords prior to the Parliament Act of 1911).

[3]See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16 (2d ed. 1986) (coining “countermajoritarian difficulty” to describe judicial review); see also Standing Rules of the Senate, Rule XXII, Part 2 (stating that on most questions whether a Senate debate “shall be brought to a close . . . shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn”).

[4]See U.S. Const., art I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State . . .”). The structure of the Senate is clearly contrary to the Supreme Court’s “one-person, one-vote” decisions. See Reynolds v. Sims, 377 U.S. 533, 574 (1964) (rejecting the federal analogy to the apportionment of state legislatures because “[t]he system of representation in the two houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal republic.”). It is also possible that forty-one Senators can represent more than fifty percent of the population, thus one cannot say that the filibuster is always countermajoritarian. Of course, judicial review is not always countermajoritarian either. The Court sometimes strike down state statutes that are contrary to the views of a national majority.

There are exceptions to the cloture rule, most notably in the “reconciliation” process that governs bills involving the budget. See 2 U.S.C. §§ 907 b, 907 d (2004); Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 215 (1997) (“Under congressional legislation governing the budget, all budget reconciliation legislation is considered under procedural rules that strictly limit the time for debate and other procedural delay. Reconciliation bills cannot be filibustered because the time for debate is strictly limited by statute.” (footnote omitted)).

[6]See Wawro & Schickler, supra note 1, at 157 (“In the contemporary Senate, with the exception of budget legislation and other bills where statutory requirements restrict minority obstruction, it is safe to assume that a 60% majority is generally necessary to adopt major legislation. In the pre-cloture Senate, no such assumption appears appropriate.”); Fisk & Chermerinsky, supra note 4, at 199 (stating that “from the late 1920s until the late 1960s, the filibuster became almost entirely associated with the battle of civil rights” and was not used on other issues); Gerhardt, supra note 5, at 452 (pointing out that Senate liberals opposed the filibuster on principle during the civil rights era).

It should be noted that the President can circumvent filibusters of his nominees to some extent by making a recess appointment. See U.S. Const., art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).

[7] This Article assumes that Rule 22 is constitutional, or at least that no court would dare invalidate a longstanding internal Senate rule. See U.S. Const., art. I, § 5, cl. 2 (stating that “[e]ach House may determine the Rules of its Proceedings . . .”); Fisk & Chemerinsky, supra note 4, at 243 (“History strongly suggests that allowing Congress to implement a supermajority voting rule is constitutionally acceptable.”); Gerhardt, supra note 5, 449 (2004) (“This Essay concludes that the filibuster is best understood as a classic example of a nonreviewable, legislative constitutional judgment.”).

[8]See Parliament Act, 1949, 12, 13, & 14 Geo. 6, c. 103 (Eng.) (providing that the House of Commons may enact legislation over the objection of the House of Lords–within a given Parliament–after a one year delay); Parliament Act, 1911, 1 & 2 Geo., c. 35 (Eng.) (providing that money bills may be enacted by the House of Commons over the objections of the Lords after just a one month delay). Part II explains how this rule emerged in Britain and why that history is pertinent for the ongoing debate about Senate cloture. See infra text accompanying notes —.

[9]See Binder & Smith, supra note 5, at 6 (“Taking advantage of the constitutionally mandated adjournment of Congress on March 4 of the odd-numbered years [prior to the Twentieth Amendment], senators perfected the art of exploiting the rules at the end of the session to block action on measures they opposed . . .”); Fisk & Chemerinsky, supra note 4, at 195, at 195 (“The early filibusters were largely unsuccessful in blocking legislation; almost every filibustered measure before 1880 was eventually passed.”). As Part I explains, a majority with intense preferences almost always prevailed because it could credibly threaten to end obstruction through a ruling by the presiding officer; a predecessor to the “nuclear option” that is discussed in the modern Senate. See Wawro & Schickler, supra note 1, at 11 (arguing “that mutability of the Senate’s rules was an important constraint on obstructive behavior in the 19th century.”); Martin B. Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster, 28 Harv. J.L. & Pub. Pol’y 205, 260-61 (2004) (explaining how a Senate majority could invoke cloture by tabling a ruling by the presiding officer that any further debate on a pending motion is out of order); infra text accompanying notes —.

This Article takes no position on whether the cloture rule can be amended by a majority or whether Rule Twenty-Two’s statement that a two-thirds vote is required to invoke cloture on a rule change controls. Compare Gerhardt, supra note 10, at 445 n* (concluding that the nuclear option “is illegal and constitutes an unfortunate breach of the Senate’s heretofore unbroken practice of amending its rules in strict accordance with its rules”), with John C. Roberts, Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule, 20 J.L. & Pol. 505, 507 (2004) (“[T]he Cloture Rule, and therefore the filibuster rule itself, are in fact subject to the will of a simple majority of the Senate at any time. I argue that this is true both as a matter of Senate practice and of constitutional principle.”). I also do not address whether, if a two-thirds vote is required, that is an unconstitutional entrenchment of cloture. Compare Fisk & Chermerinsky, supra note 4, at 185 (stating that Rule Twenty-Two “impermissibly entrenches the views of today’s Senate by dictating rules for future Congresses”), with Gerhardt, supra note 5, at 448 (“Article I contains no explicit or implicit antientrenchment principle that would preclude the Senate from adopting procedural rules that carry over from one session to the next and may only be altered with supermajority approval.”).

[10]See Fisk & Chemerinsky, supra note 4, at 184 (“The modern filibuster, by contrast, has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that.”); see also Binder & Smith, supra note 5, at 1 (“According to conventional wisdom, the right of unrestricted debate in the Senate helps moderate extreme legislation, blocks passage of measures opposed by a popular majority, and is inseparable from the origins and traditions of the Senate. Such claims are, in fact, mostly myth: there is scarce theoretical or empirical support for much of the received wisdom about the Senate filibuster.”).

[11]See Fisk & Chemerinsky, supra note 4, at 201 (“In response to repeated civil rights filibusters, Majority Leader Mike Mansfield developed a system whereby the Senate would spend the morning on the filibustered legislation and the afternoon on other business.”); Gold & Gupta, supra note 10, at 252-53 (“By 1975, the Senate had implemented a “two-track system” for considering legislation, which allowed the Senate to continue to work on all other legislation on one track, while a filibuster against a particular piece of legislation is theoretically in progress on the other track.”(internal quotation marks omitted)).

[12]See Wawro & Schickler, supra note 1, at 259-60 (“If the supporting coalition behind a piece a major legislation is not large enough to invoke cloture, the legislation is not likely even to make it to the floor.”); Fisk & Chemerinsky, supra note 4, at 203 (“A credible threat that forty-one senators will refuse to vote for cloture on a bill is enough to keep that bill off of the floor.”).

[13]See Binder & Smith, supra note 5, at 216 (“Party leaders–trying to cater to their members’ frequent requests for a more predictable and family-friendly (let alone fundraising friendly) schedule–are unlikely to want to enforce round-the-clock filibusters at the expense of creating a logjam of important legislative business.”); see also Wawro & Schickler, supra note 1, at 262 (“[I]t is the choice of a majority not to engage obstructing senators in a war of attrition.”).

[14]See, e.g.,The Federalist No. 63, at 430 (James Madison) (Jacob E. Cooke ed., 1961) (calling the House of Lords a “hereditary assembly of opulent nobles”); see also Walter Bagehot, The English Constitution (Cosimo Classics 2007) 95 (1873) (stating that the House of Peers was inferior because “[t]he qualities which fit a man for marked eminence, in a deliberative assembly, are not hereditary, and are not coupled with great estates.”); Jenkins, supra note 2, at 55 (quoting Winston Churchill’s view that the Lords was a “one-sided, hereditary, unprized, unrepresentative, irresponsible absentee”). Most of the hereditary peers were finally removed from the House of Lords in 1999, see House of Lords Act, 1999, c. 34 (UK), and now most of its members are lifetime appointees, see Life Peerages Act, 1958, 6 & 7 Eliz. 2, c. 21 (UK).

[16]See U.S. Const., art. II, § 2, cl. 2 (stating that “two thirds of the Senators present” must concur to ratify a treaty); Antoine v. Washington, 420 U.S. 194, 201-02 (1975) (describing this struggle in the 1860s and 1870s); Act of Mar. 3, 1871, 16 Stat. 544, 566 (codified as 25 U.S.C. § 71) (“No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty . . . .”).

[17]See Gerard N. Magliocca, State Calls for an Article Five Convention: Mobilization and Interpretation, 2009 Cardozo L. Rev. de novo 74, 79-81 (describing this showdown over the Seventeenth Amendment).

[18]See Bruce Ackerman & David Golove, Is NAFTA Constitutional? 89-96 (1995) (describing how the Senate relinquished its treaty monopoly during the mid-1940s); see also John Milton Cooper Jr., Woodrow Wilson: A Biography 506-59 (2009) (recounting the Senate debate over the Treaty of Versailles).

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

3 Responses

Interesting idea, but wouldn’t the practical effect of a one-year suspension be just about the same as an absolute veto? In the UK, Parliaments last for up to five years, so a one-year hold still leaves considerable time for legislative action. In the US, with a new Congress every two years, serious legislation often doesn’t reach the floor until the second half of the opening year of the Congress. A one-year hold would put the bill over until after the summer break in the second year, a period when most members are far more focussed on reelection than on legislating. I would think a four-to-six month period, which would be proportional to the difference in time frames for the UK and US legislatures, would make more sense.

It’s a fair point. One alternative would be to have a graduated reduction in the cloture requirement that would reach a majority after one year. So maybe in 4-6 months the threshold should be 55. There is an argument for letting a minority block a bill that reaches the floor at the end of a Congress, so it depends how you want to define “The End.” In the Parliament Act of 1911, the Lords were able to block legislation for two years, which is roughly 1/2 of a Parliament given that it took time to pass the bill in the first place. So this proposal would be similar to that, even though now the Lords can only stop a bill for one year. I would suspect that if a filibustering minority could only delay bills for one year, though, that power would be used far less often.

In my youth, if Senator Morse wanted to filibuster he had to get up and speak. And keep speaking. On and on. And perhaps recruit a fellow objector to yield to, while he went to the potty.

Forget all this b.s. about pseudo filibusters (see notes 10 thru 13). Nowadays there is no cost–personal or political–to saying “I’m filibustering; table that legislation indefinitely.” Simply make them go back to *real* filibusters to block the legislative process.

“Two tracks?” B.S. Make some senator, or group of senators, stand at the podium and bring Congress to a screeching halt, stopping the *entire* legislative process, not just shuffling the bill they don’t like off to the “idle track.” Then we will see who has the heart, the cojones, and the political will to become known as the one(s) who brought the whole country to a standstill to get their way.